Exhibit 10.1
AMENDMENT NO. 5
to
Terms of Employment
of
Xxxxxx X. Xxxxxxxx
with
CONCORD CAMERA CORP.
This AMENDMENT NO. 5 is made this 24th day of June 2008 to the Terms of
Employment having an effective date of February 11, 2003, as heretofore amended
(as amended, the "Amended Agreement"), by and between CONCORD CAMERA CORP. (the
"Company") and Xxxxxx X. Xxxxxxxx (the "employee").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which
is hereby acknowledged, the Amended Agreement is hereby further amended as
follows:
1. Capitalized terms used but not defined herein have the meanings
assigned to them in the Agreement.
2. The following paragraph is hereby added to Section 11, Termination,
of the Amended Agreement:
"Additionally, if the Company terminates the employee for any reason
other than cause or for no reason and the employee, by written
notice to the Company, (i) elects COBRA continuation coverage (for
the period after the termination effective date) under the Company's
insurance policies by which the employee is then covered or, if
COBRA continuation coverage under the Company's insurance policies
is not available for any portion of the one (1) year post-employment
period, (ii) obtains medical, dental and vision insurance coverages
substantially similar to the medical, dental and vision insurance
coverages under the Company's insurance policies in effect at the
time COBRA continuation coverage under the Company's insurance
policies is no longer available, then the Company shall reimburse
the employee for the premiums paid by the employee thereunder during
the one (1) year post-employment period which shall run from the
termination effective date. The Company shall make each such premium
reimbursement payment within seven (7) days after its receipt of
notice of payment thereof by the employee"
3. The following new Section 21 is hereby added to the Agreement:
"21. Section 409A of the Code.
This Agreement is intended to comply with Section 409A of the
Internal Revenue Code of 1986, as amended (the "Code") to the extent
applicable, and shall be so interpreted. Notwithstanding anything
herein to the contrary, (i) if at the time of a "separation from
service" from the Company, the employee is a "specified employee"
(as such terms are defined in Section 409A and any related
regulations or other pronouncements thereunder) and the deferral of
the commencement of any payments or benefits otherwise payable
hereunder as a result of such separation from service is necessary
in order to prevent any accelerated or additional tax under Section
409A, then the Company will defer the commencement of the payment of
any such payments or benefits hereunder (without any reduction in
such payments or benefits ultimately paid or provided to the
employee) until the date that is six months following the employee's
separation from service from the Company
(or the earliest date as is permitted under Section 409A). To the
extent any reimbursements or in-kind benefits due to the employee
under this Agreement constitutes "deferred compensation" under
Section 409A, any such reimbursements or in-kind benefits shall be
paid to the employee in a manner consistent with Treas. Reg. Section
1.409A-3(i)(1)(iv). Each payment made under this Agreement shall be
designated as a "separate payment" within the meaning of Section
409A. Neither the Company nor any of its employees or
representatives shall have any liability to the employee with
respect to Section 409A."
4. This Amendment No. 5 is effective June 24, 2008. Except as hereby
amended, the Amended Agreement shall continue in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
date first above written.
Accepted and Agreed: Accepted and Agreed:
-------------------- --------------------
EMPLOYEE: CONCORD CAMERA CORP.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxx X. Xxxxxxx
-------------------------------- ----------------------------------
Xxxxxx X. Xxxxxxxx Xxx X. Xxxxxxx
Chairman, CEO and President
